By the contract and specifications under which this work was done the plaintiff agreed to remove and replace with new asphalt pavement all such portions of the existing asphalt pavement within the limits specified as had become badly worn, bunched, depressed or damaged; that any materials furnished or work done not satisfactory to the engineer should be immediately removed and satisfactorily replaced by the contractor; that the contractor would furnish all the labor and materials at his own expense, necessary or proper for the purpose, and in a good, substantial and workmanlike manner, and in strict accordance with the specifications therein contained or thereto attached, make repairs to the asphalt pavement of the streets mentioned, when and where directed as may be deemed to be necessary, “ and maintain said pavement in good condition to the satisfaction of the President during the term of this contract;” that “the engineer shall inspect the materials to be furnished and the work to be done under this agreement, and see that the same strictly correspond with the specifications herein contained or hereto annexed, which materials and workmanship shall always be subject to the approval of the engineer;” that to prevent all disputes and litigation, the engineer should in all cases determine the amount or the quality of the several kinds of work and mate*291rials which are to be paid for under the contract, and he should determine all questions in relation to the work or materials, and the construction thereof; and he should in all cases decide every question which might arise relative to the execution of this contract on the part of the contractor, and his estimate and decision should be final and conclusive, and such estimate and decision, in case any question shall arise, should be a condition precedent to the right of the contractor to receive any money under the contract. Any doubt as to the meaning of these specifications, or any obscurity as to the wording of them, would be explained by the engineer, and all directions and explanations requisite or necessary to complete, explain or make definite any of the provisions of these specifications and give them due effect will be given by the engineer; that the work should be performed in the best manner, and all materials of which the work is composed should be of the best kind, and a sufficient number of persons should be at all times employed to execute the work with due dispatch, the whole to be done to the satisfaction of the engineer, and any materials furnished and work done not satisfactory to the engineer should be immediately removed and satisfactorily replaced by the contractor; and that “the action of the engineer by which the contractor is to be bound and concluded according to the terms of this contract shall be that evidenced by his final certificate, all prior certificates upon which ninety per cent (90%) payments may be made being merely estimates, and subject to the corrections of .such final certificate, which may be made without notice to the contractor thereof or of the measurements upon which the same is based.” There was a further provision that the city should not, nor should any department or officer thereof, be precluded or estopped by any return or certificate made or given by the president, any engineer or other officer, agent or appointee of the city under any provision of this agreement from at any time, either before or after the final completion and acceptance of the work and payment therefor pursuant to any such return or certificate, showing the true and correct amount and character of the work done and materials furnished by the contractor. The contract further provided that the contractor should receive the prices named for furnishing *292all the materials and labor, and the performance of all the work set forth in the specifications and form of contract, and in all respects performing and completing the same.
The plaintiff did the work required of it by the defendant’s officers, and the engineer issued the final certificate as to the amount of work done, and for which the plaintiff was entitled to be paid, and the plaintiff has been paid the amount required by the final certificate. It brings this action to recover an additional amount represented by the work done in taking up certain portions of the pavement that it had laid under the contract, and replacing same with hew pavement as directed by the engineer. This contract is plain and unambiguous. The plaintiff entered into it with full knowledge of its provisions. Under the contract the amount the plaintiff was to receive was to be evidenced by the final certificate from the engineer, and the city was not to be estopped or precluded by the action of any engineer or other officer at any time either before or after the final completion and acceptance of the work and payment therefor. Under the contract the plaintiff was bound to maintain the portion of pavement repaired by it in good order and condition during the whole term of the contract, and it was bound to repair any portion of the pavement that it laid which had become out of repair during such period. The complaint alleges that the engineer had made the final certificate, and had been paid by the defendant the amount called for by that final certificate; that the plaintiff duly demanded from the chief engineer of the bureau of highways and from the president of the borough of Manhattan that they and each of them certify to the comptroller for payment the remaining 1,528.7 square yards of asphalt pavement laid by it, and the said chief engineer of the bureau of highways and the president of the borough of Manhattan refused to make and transmit such certificate to the comptroller of the city of New York; that the acts of the said chief engineer of the bureau of highways and the president of the borough of Manhattan of the city of New York, and of each of them in refusing to make and transmit a certificate for payment for 1,528.7 square yards of asphalt pavement a,t. the price specified were arbitrary and erroneous and constituted a fraud upon the *293plaintiff and a breach of the said contract. But as to that allegation there is no proof, as I read the record. The parties by the contract have provided that the chief engineer should determine the work to be done, should determine what of the work that had been done was not properly done, and what of the pavement laid by the plaintiff should be relaid to keep the pavement in good repair during the term of the contract, and that the plaintiff should be paid for full completion of the contract such sum as the engineer should certify the plaintiff was entitled to receive under the contract. In making repairs to the pavement and in keeping the pavement so repaired in good condition during the term of the contract, the contractor was to be bound by the determination of the engineer, and the determination by which it was to be bound was the final certificate which the engineer had executed and for which the plaintiff had been paid. This, as I read the contract, the plaintiff has agreed should be the full consideration which should be paid to it for the work done under the contract. There is not the slightest evidence that the engineer acted in bad faith; that, all the work done by the plaintiff has not been paid for, except that portion of the pavement which is laid and which the engineer had ordered removed and relaid in order to keep the pavement in good condition during the term of the contract. The defendant is a municipal corporation. These contracts are executed and accepted by contractors and I can see no reason why these contractors should not be bound by the contracts under which they do the work and be entitled to the amount which they have expressly contracted they should receive for doing the work. The distinction between a contract of this kind and one by which the contractor is to construct a building or perform a specified piece of work where the engineer has refused to certify the amount due under the contract is clear. Assuming that the plaintiff was required by the engineer to take up some portion of the pavement that it had laid and replace it and did that work, it seems to me that the contract expressly contemplates when that is done the contractor is not to be entitled to receive payment for the pavement thus replaced. Thus, I think the engineer was right in refusing to certify that the plaintiff was entitled to be paid the contract price for the removal and *294relaying of the pavement which it had laid. But if there was a question as to whether that pavement was properly ordered to he replaced, or that such removal was properly ordered by the engineer, that question was one which by the express terms of the contract was to be determined by the engineer, and if he in good faith determined that the pavement relaid was necessary to keep the pavement in good condition, the plaintiff was bound by that certificate. Under the provisions of this contract the plaintiff is not entitled to recover any sum in addition to that covered by the final certificate actually issued, and the amount due under that final certificate the plaintiff admits having received. I think, therefore, the court below was right in dismissing the complaint and that the judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.